Jim Moore retired from the U.S. Bureau of Alcohol, Tobacco and Firearms as ATF’s agent-in-charge for Maine and New Hampshire. His career included two years with the Federal Organized Crime & Racketeering Strike Force and two years with INTERPOL where he directed international investigations of robbery, rape, murder and terrorism. Moore had developed a high regard for Maine law enforcement, so when charges surfaced that Dennis Dechaine had been wrongfully convicted for the 1988 murder of Sarah Cherry, he decided to see for himself. At that time, Moore regarded Dechaine’s supporters “as a bunch of bird brains out to trash law enforcement.” However, while conducting an independent investigation at his own expense, Moore concluded that Dechaine indeed had been wrongfully convicted. He has since written two books on the case, Human Sacrifice and State Secrets, all proceeds of which are donated to securing a retrial for Dechaine.

In October, 2004, Maine Attorney General Steve Rowe responded to Moore’s allegations of misconduct by state officials during the investigation and prosecution of Dechaine by appointing a panel of three private lawyers to “investigate” the allegations. Two years later, the panel reported there was no evidence of misconduct. They did not submit any information or evidence supporting that conclusion or disputing any of the documented evidence in a formal report submitted by Moore. The panel refused a Freedom of Access Request for the records of their “investigation” and fought all the way to the Supreme Court of the State of Maine to avoid disclosing record, fact or information which might support their conclusion regarding the documented evidence presented in the report. The Supreme Court’s 3-2 decision upheld the lawyers’ position that they did not have to comply with the state’s Freedom of Access Act. Moore’s Report appears below, followed by a Maine Law Review article about the Supreme Court’s ruling.

“Ultimately, in Moore, the Law Court rendered a decision that restricts access to records of an entity performing an independent review of a law enforcement investigation and prosecution. The majority, by applying a narrow version of the law to its view of the facts, concluded the FOAA did not make the records of the investigatory panel public. In contrast, the dissent took a broader view of the applicable law to reach a decision that favors disclosure. Given that the Maine Legislature clearly stated its intent that the FOAA be liberally construed, the majority decision appears to be at odds with the legislature’s direction, especially considering that the functional equivalency test need not be construed so narrowly as to only apply to legislatively created entities when the FOAA applies more broadly. As a result, this Note makes three recommendations. First, when faced with factual disagreements in a public records case, as here, the Law Court should consider remanding for further factual findings and an in-camera inspection. Doing so would ensure the facts are sufficiently developed and also may lead to fewer split decisions.

“Second, the Law Court should revisit the functional equivalency test to adopt the dissent’s broader view of the fourth factor, so that entities created by government, as opposed to solely by the legislative action, are subject to the FOAA’s disclosure requirements. This would better effectuate the Maine Legislature’s intent that the business of Maine’s governments be open. Third, the Maine Legislature should amend the FOAA’s definition of public records either to require that advisory panels turn their records over to the appropriate charging agency, or to include as public records the records of advisory panels created by the Maine Legislature, Governor, or a constitutional officer. Doing so would ensure that the burden for litigation is placed on the state or appropriate charging agency, as opposed to citizens who have volunteered to serve their cities, counties, or state in an advisory capacity. Otherwise, citizens who volunteer will bear a significant risk of being sued, which could be a disincentive to this type of public service.”

Comment from Jim Moore:

“Had the three-lawyer panel provided facts, evidence or any justification for their “no misconduct” conclusion, they would have satisfied Attorney General Rowe’s purpose in recruiting them for this task, i.e. “to ensure continued public confidence in the Office of the Attorney General as well as other law enforcement agencies in the State of Maine.”

“In my view, the most logical explanation for that three-lawyer panel’s relentless refusal to cite any fact or evidence disputing the proofs of official misconduct in this case can only be that the panel had no fact, evidence or other justification for their ‘no misconduct’ finding.”